US Bank National Assoc. v. Finkel, L. , 164 A.3d 512 ( 2017 )

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2017 Pa. Super. 158
US BANK NATIONAL ASSOCIATION, AS IN THE SUPERIOR COURT OF
TRUSTEE FOR WELLS FARGO PENNSYLVANIA
ALTERNATIVE LOAN TRUST, SERIES
2005-1
Appellee
v.
LESLIE M. FINKEL A/K/A LESLIE M.
ALTIERI AND ALEXANDER BRYAN
ALTIERI
Appellants
No. 252 EDA 2016
Appeal from the Judgment Entered December 15, 2015
In the Court of Common Pleas of Northampton County
Civil Division at No(s): 2011-C-5023
BEFORE: BOWES, OLSON AND STABILE, JJ.
OPINION BY BOWES, J.: FILED MAY 23, 2017
Leslie M. Finkel a/k/a Leslie M. Altieri and Alexander Bryan Altieri
appeal from the judgment entered December 15, 2015, in favor of U.S.
National Association (the “Bank”) as Trustee for Wells Fargo Alternative Loan
Trust, Series 2005-1. Appellants challenge the trial court’s June 26, 2013
order, as amended July 29, 2013, granting partial summary judgment in
favor of the Bank and imposing an equitable lien on Appellants’ property.
After careful review, we vacate the judgment and remand for further
proceedings in accordance herewith.
The record indicates that, on March 12, 2004, Leslie Finkel individually
secured a $300,000 mortgage with Wells Fargo to purchase a residence
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located at 4120 Douglas Drive, Bethlehem, Northampton County,
Pennsylvania (the “Property”). She purchased the Property with Alexander
Bryan Altieri, who was then her boyfriend. Mr. Altieri neither applied for nor
executed the mortgage. Rather, he contributed $300,000 in cash to
purchase the Property.
Ms. Finkel and Mr. Altieri were present at closing. Both of their names
appeared on the deed to the Property as grantees. Ms. Finkel executed the
mortgage and note, which were in her name alone. She also signed various
notices and documents associated with the mortgage. A HUD-1 statement
bears the signatures of Ms. Finkel and Mr. Altieri on the lines designated for
“Borrowers,”1 although neither of them recalled signing the document at
closing.
In 2004, the mortgage was assigned to the Bank. Ms. Finkel and Mr.
Altieri married on June 12, 2004, and continued to live at the Property. In
February 2009, the mortgage was allegedly in default. On August 11, 2010,
Ms. Finkel penned the first of three letters to the Bank seeking
accommodation. She explained therein the reasons for the arrears on “our”
mortgage, and how “they” intended to pay them.
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1
Mr. Altieri is legally blind. He purportedly placed his mark on the
document but his name was signed by another.
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On June 2, 2011, the Bank commenced this action to reform the
mortgage to add Mr. Altieri as a mortgage obligor on the Property. In the
alternative, the Bank sought imposition of an equitable lien. The Bank pled
that Mr. Altieri was not on the mortgage due to a “mutual mistake” which
did not reflect the true intentions of the parties. Amended Complaint,
8/15/11, at ¶10. Appellants filed preliminary objections to the complaint
and amended complaint, which were overruled. In their Answer and New
Matter, Appellants denied that there was any mutual mistake, and averred
that the mortgage, which was prepared by the Bank, was never intended to
be in Mr. Altieri’s name. Answer and New Matter and Counterclaims,
1/30/12, at ¶¶4, 5, 7. Appellants further alleged that the Bank “specifically
and purposefully excluded [Alexander] Altieri from the loan.” Id. at ¶10.
They also filed counterclaims asserting violations of the Unfair Trade
Practices and Consumer Protection Law, the Fair Debt Collection Practices
Act, the Fair Credit Extension Uniformity Act, and the Equal Credit
Opportunity Act.
At the close of the pleadings, the Bank moved for partial summary
judgment on the equitable lien claim. At that point, minimal discovery was
completed. The Bank had propounded requests for admissions,
interrogatories, and requests for production of documents to which
Appellants had responded. The trial court, by order of June 26, 2013,
granted the Bank’s request for partial summary judgment on the equitable
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lien claim, basing its decision on the HUD-1 form designating Mr. Altieri as a
“Borrower,” Appellants’ responses to requests for admission Nos. 6 and 8,
Ms. Finkel’s letters to the Bank, and Mr. Altieri’s presence at the closing on
the Property.
On July 3, 2013, Appellants asked the trial court to amend its order to
include a determination of finality pursuant to Pa.R.A.P. 341(c), to permit an
immediate appeal to this Court, which the trial court denied. The Bank
sought clarification of whether the June 26, 2013 order imposing the
equitable lien was interim or permanent relief. By order dated July 29,
2013, the court amended its earlier order to clarify that the equitable lien
was indeed permanent and independent of the mortgage reformation claim.
On August 30, 2013, Appellants filed an appeal to this Court from the
order granting partial summary judgment. This Court quashed the appeal
on March 20, 2014, as interlocutory. U.S. Bank National Association v.
Finkel, 100 A.3d 313 (Pa.Super. 2014) (unpublished memorandum).2
Discovery continued on Appellants’ counterclaims. On June 10, 2015,
the Bank filed a second motion for summary judgment on those claims.
Appellants sought reconsideration of the June 2013 order, as amended July
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2
This Court ruled that Appellants’ prior appeal was not taken from a final
order. Furthermore, we rejected Appellants’ contention that it was an
interlocutory appeal as of right from an attachment pursuant to Pa.R.A.P.
311(2).
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2013, which imposed the equitable lien. By order dated December 15,
2015, the trial court granted the Bank’s motion for summary judgment and
denied reconsideration, thus finally disposing of all claims.
Appellants timely appealed and present three questions for our review:
A. Whether the trial court failed to properly apply the standard
applicable to summary judgment motions under Rule
1035.2(1)?
B. Whether it was an error of law to conclude that no showing of
injustice or unjust enrichment was required to establish an
equitable lien?
C. Whether the court erred in failing to consider the nature in
which title was held?
Appellants’ brief at 4 (unnecessary capitalization omitted).
Summary judgment is proper “only where there is no genuine issue as
to any material fact and it is clear that the moving party is entitled to
judgment as a matter of law.” Daley v. A.W. Chesterton, Inc., 37 A.3d
1175, 1179 (Pa. 2012). In determining whether to grant summary
judgment, “the trial court must take all facts of record and reasonable
inferences therefrom in a light most favorable to the non-moving party” and
resolve all doubts as to the existence of a genuine issue of material fact
against the moving party.” Nationwide Mut. Fire Ins. Co. v. Modern
Gas, 143 A.3d 412, 415 (Pa. 2016).
In reviewing the propriety of a trial court’s grant of summary
judgment, an appellate court also views the record in the light most
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favorable to the non-moving party. The issue as to whether there are
genuine issues as to any material fact presents a question of law, and
therefore, our standard of review is de novo, and we need not defer to the
determinations made by the trial court. Id. at 415. “[A]ll doubts as to the
existence of a genuine issue of material fact must be resolved against the
moving party.” Daley, supra at 1179. We will reverse the order of the trial
court “only where it is established that the court committed an error of law
or abused its discretion.” Phillips v. Lock, 86 A.3d 906, 912 (Pa.Super.
2014).
Appellants characterize the motion for summary judgment herein as
one filed prior to the completion of discovery pursuant to Pa.R.C.P.
1035.2(1). They maintain that summary judgment on this basis is only
appropriate in cases where there is no dispute regarding a material fact, and
that genuine issues of material fact precluded summary judgment herein.
They contend that the purported admissions relied upon by the court were
not admissions. Furthermore, Appellants contend that the court ignored
factual issues, resolved credibility issues, and refused to permit evidence on
equitable defenses. In sum, Appellants allege that the court erred in
granting summary judgment on the equitable lien claim.
In order to determine whether there were genuine issues of material
fact that precluded the entry of summary judgment, it is first necessary to
determine what facts were material to the equitable lien claim at issue. “An
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equitable lien arises from an obligation, usually monetary in nature, owing
by one person to another, a res to which that obligation attaches, and an
intent by all parties that the property serve as security for the payment of
the obligation.” Kern v. Kern, 892 A.2d 1, 8 (Pa.Super. 2005); Hoza v.
Hoza, 448 A.2d 100 (Pa.Super. 1982). Such a lien is appropriate where the
defendant’s interest in the property is subject to an obligation owed to the
plaintiff. Hoza, supra at 104. As this Court held in R.M. Shoemaker &
Co. v. Southeastern Pennsylvania Economic Development Corp., 419
A.2d 60, 63 (Pa.Super. 1980), “an equitable lien arises from a contract
indicating an intent to make certain property security for an obligation or
from a situation which otherwise would result in unjust enrichment.” See
also 22 P.L.E., Liens § 3; Gladowski v. Felczak, 31 A.2d 718 (Pa. 1943).
In Mermon v. Mermon, 390 A.2d 796, 799 (Pa.Super. 1978), we
noted that a right to an equitable lien requires evidence that is “clear,
precise and indubitable as to the intention of the parties.” Furthermore,
before the lien can be imposed upon a particular parcel of property to secure
a debt, “there must be an agreement sufficiently clear and unambiguous
evidencing such intent.” Mermon, at 800. We held in Mermon that “[t]he
mere borrowing of money does not in itself give a lender a lien and ‘in the
absence of a showing of an intent to create it, an equitable lien will not arise
in favor of one who advances money to pay the purchase price of realty.’”
Id.
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The trial court found that the Appellants’ responses to request for
admissions numbers 6 and 8 “established that the Defendants have admitted
to each element of an equitable lien.” Order, 6/26/13, at 5. Specifically, the
court found that Appellants admitted that “the mortgage was a purchase
money mortgage obtained for acquiring the Property,” and that “the
Defendants intended that the Property served as security for the
mortgage[,]” although Ms. Finkel denied that Mr. Altieri was a party to the
mortgage. Id. It concluded further that Ms. Finkel admitted in her Answer
that the mortgage was issued with the Property as security. The court
viewed Ms. Finkel’s response, “standing alone,” as enough to establish the
first requirement for an equitable lien.
The court also found that Mr. Altieri’s signature on the HUD-1 form on
the line designated “Borrower” constituted an admission of his intent.
Although Mr. Altieri expressly denied that he was a party to the mortgage, a
fact supported by the document itself, the court found that references in
letters penned by Ms. Finkel to “our mortgage,” “our monthly payment” and
“when we set up our mortgage,” together with the signed HUD-1 form,
satisfied the “obligation requirement for an equitable lien.” Id. Finally, Mr.
Altieri’s presence at closing, his subsequent marriage to Ms. Finkel, and his
status as owner of the property demonstrated the requisite intent.
Appellants challenge the adequacy of the record in support of partial
summary judgment, and dispute the weight accorded by the trial court to
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the HUD-1 statement and the purported admissions. They argue that the
HUD-1 form bearing Mr. Altieri’s signature did not constitute proof of his
intent to be obligated on the mortgage. Furthermore, they assert that an
equitable lien requires proof of the requisite intent of all parties to the
transaction. They contend that the Bank failed to adduce any evidence that
it intended to include Mr. Altieri on the mortgage, and it was the Bank’s
burden to prove such intent. Appellants allege further that, since there was
no agreement evidencing that intent, and the mortgage itself would
seemingly refute such a notion, the Bank was required to prove unjust
enrichment or some other basis for imposing the lien, which it failed to do.
Additionally, Appellants allege that the court ignored their unclean
hands defense. They maintain that subsequent discovery proved that the
Bank structured this transaction so that Ms. Finkel alone could obtain the
financing, and it deliberately avoided participation by Mr. Altieri, who had a
poor credit rating, to achieve that end. Appellants argue that the trial court
failed to consider the entire record, to review it in the light most favorable to
them as the non-moving party, and to recognize that additional discovery
would lead to evidence material to the defense. Finally, Appellants assert
the trial court resolved issues of fact that should have been reserved for the
jury.
We note at the outset that the equitable lien was granted on a scanty
record after only preliminary discovery. Furthermore, while it was
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undisputed that Ms. Finkel owed a monetary obligation to the Bank based on
the mortgage, Appellants contested Mr. Altieri’s obligation. Even the trial
court acknowledged that Mr. Altieri was not designated as a mortgagor, he
did not sign that instrument or the note, and he denied any intent to be
bound by the mortgage obligation.
The first question presented herein is whether there was any
agreement indicating an intent by all parties to the transaction that the
entire Property, not just Ms. Finkel’s interest, serve as security for the
payment of the mortgage. Ms. Finkel denied any intent to encumber Mr.
Altieri’s share of the property and Mr. Altieri denied any intent that his
interest be subject to the mortgage. Appellants contend further that their
responses to requests for admissions are incapable of the construction
placed upon them by the court and do not excuse the requirement of an
agreement. Appellants also allege that the Bank intentionally omitted Mr.
Altieri from the mortgage so that his poor credit rating would not impede Ms.
Finkel’s qualification for financing. The Bank pled that his omission from the
mortgage was a mutual mistake but offered no proof in support of that
position.
Viewing the record as of the entry of summary judgment, we agree
with Appellants that the purported admissions did not suffice to prove the
requisite agreement and intent of the parties. Request for admission No. 6
asked Appellants to admit that, “The Mortgage is a purchase money
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mortgage and was obtained for the express purpose of Defendants acquiring
ownership of the 4120 Douglas Drive premises.” Appellants’ response to the
request was “Admitted in part; denied in part.” Appellants admitted that the
mortgage was a purchase money mortgage. They denied the statement “to
the extent that it indicates that Defendant, Alexander Bryan Altieri, obtained
the mortgage or intended to be bound by the same.”
Request for admission No. 8, which the trial court deemed conclusive,
actually reads as follows:
8. Both Defendants intended that the 4120 Douglas Drive
premises serve as security for the loan secured by the Mortgage.
Admitted in part, denied in part.
It is admitted that the Defendant, Leslie M. Finkel (a/k/a Leslie
M. Altieri), intended that 4120 Douglas Drive serve as security
for her obligation. However, the Defendants must qualify their
response and deny certain portions as standing alone outside of
the context of the whole truth such response conveys an unfair
or unwarranted inference. In regard to the Defendant,
Alexander Bryan Altieri, such statement is denied as he
only intended that the mortgage have the legal effect to
which it states and he never had any obligation under the
note or mortgage which would encumber his ownership
interest. The transaction was intended to be a loan on the
part of Leslie M. Finkel (a/k/a Leslie M. Altieri) for a
property owned by both Defendants. The Defendants
make no admission related to the legal significance of the
document. . . .
Plaintiff’s Requests for Admission, No. 8 (emphasis added).
The court construed this response as a binding admission of intent on
Mr. Altieri’s part to be obligated under the mortgage. We do not. A request
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for admission may relate to statements, opinions of fact, the application of
law to fact, or to questions regarding the authenticity, execution, signing,
receipt of documents. Pa.R.C.P. 4014(a). The Rule requires that “[a] denial
shall fairly meet the substance of the requested admission, and when good
faith requires that a party qualify the answer or deny only a part of the
matter of which an admission is requested, the party shall specify so much
of it as is true and qualify or deny the remainder.” Id. While “Any matter
admitted under this rule is conclusively established,” Pa.R.C.P. 4014(d), we
have discouraged an inflexible application of the rule. We are mindful that
Rule 4014 was designed to ensure that a case was determined on its merits,
not disposed of summarily. Coleman v. Wyeth Pharms., Inc., 6 A.3d 502
(Pa.Super. 2010). Moreover, the failure to deny conclusions of law are not
deemed admissions as they are not within the permissible scope of such a
request.
Request for admission No. 8 asked Appellants to admit or deny
whether they intended that the Property serve as security for the mortgage
loan. A fair reading of the response is that Ms. Finkel intended that the
mortgage secure her interest in the Property; Mr. Altieri denied any
obligation under the note or mortgage that would encumber his ownership
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interest and he intended that the mortgage have that stated legal effect.3
When viewed in the light most favorable to the non-moving party, we do not
view this response as an admission that Mr. Altieri intended to encumber his
interest in the Property.
Furthermore, we agree with Mr. Altieri that the Bank bore the burden
of proving that all parties intended that the Property act as security for the
mortgage as a prerequisite for an equitable lien. The Bank failed to
conclusively establish that it intended that Mr. Altieri be obligated on the
mortgage. The importance of this factor is evident in Mermon, supra.
Therein, the parents paid the purchase price for property deeded in the
name of their son and daughter-in-law, and provided funds for furnishings.
There was no written agreement between the parents and children at the
time of the transaction. Nine months later, the son wrote a letter to his
parents and sister conveying his intent to pay off the loan that his parents
gave him for the purchase of the home and furnishings. Approximately one
and one-half years later, the daughter-in-law filed a complaint in divorce
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3
Appellants’ view is consistent with the law of this Commonwealth. Two
unmarried parties are presumed to hold title as tenants in common unless
there is specific intent of survivorship. See Ladner on Pennsylvania Real
Estate Law. Each tenant in common may convey, encumber or devise his or
her undivided interest in real property. Id. at Section 8.03, p. 8-6 (Bisel 5th
ed. 2006). Additionally, this Commonwealth subscribes to the theory that a
mortgage constitutes a lien solely on the mortgagor's interest. In re City of
Philadelphia, 63 A.2d 42 (Pa. 1949).
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against the son. Thereafter, the parents filed a complaint in equity seeking
imposition of either a resulting trust or an equitable lien on the property.
We affirmed the trial court’s denial of relief under either theory.
Absent was a clear and unambiguous agreement evidencing the intent to
have the property secure payment of the obligation required for imposition
of an equitable lien. We held that “in the absence of a showing of an
intention to create it, an equitable lien will not arise in favor of one who
advances money to pay the purchase price of realty.” Mermon, supra at
800. Parents failed to adduce sufficient proof of the intent on the part of all
parties.
Although the trial court acknowledged that Mr. Altieri was not a party
to the mortgage and that he denied any intention to be bound by the
mortgage, the court found Ms. Finkel’s references to “our mortgage,” “our
monthly payment” and “when we set up our mortgage,” together with the
signed HUD-1 form, to be adequate refutation. We disagree. Ms. Finkel’s
2010 and 2012 letters to the Bank are certainly not conclusive proof of Mr.
Altieri’s intent in 2004. In treating those comments as admissions, the trial
court resolved genuine issues of material fact.
Finally, it was controverted that Mr. Alteri’s purported signature on the
HUD-1 form evidenced an agreement to be obligated as a Borrower on the
mortgage entered into by Ms. Finkel. The form details the apportionment of
fees, costs and taxes due at a property closing. We note that the form itself
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states that the signature of the “Borrower” is merely an acknowledgement of
receipt of the document. (“The undersigned hereby acknowledges receipt of
a completed copy of pages 1 & 2 of this statement & any attachments
referred to herein.”). HUD-1 form. Thus, at most, the HUD-1 form raised
genuine issues of fact regarding Mr. Altieri’s intent. Based on the foregoing,
we conclude partial summary judgment on the equitable lien was improperly
entered as there were genuine issues of fact for the trier of fact.
Subsequent discovery further substantiates our conclusion. On June
11, 2015, Appellants filed a motion for reconsideration of the grant of partial
summary judgment on the equitable lien, averring that evidence gleaned
during further discovery not only justified reconsideration, but undermined
the grant of partial summary judgment. Appellants maintained that, since
the prior order was interlocutory, reconsideration was not time-barred.
Nonetheless, the trial court denied reconsideration.
We find merit in Appellants’ position. Discovery yielded evidence that
the mortgage transaction was structured as the Bank intended. According to
the loan originator, Evan Shenkman, the loan program was a high risk,
subprime program that required little documentation. Deposition of Evan
Shenkman, 9/26/13, at 36. He explained that these types of loans were
based on credit score and down payment, with little concern for the
mortgagor’s source of income. Id. at 29. There was a disincentive to seek
documentation as it could disqualify the applicant. Id. at 35. It was up to
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buyers to determine who would be on the mortgage and it was not
uncommon for the mortgagor to differ from the grantees on the deed. Id.
at 22. Mr. Shenkman acknowledged that he, as a loan originator, would
submit a mortgage application that identified the borrower and the person or
persons taking title to the property. Id. at 24. He described it as a
streamlined process. He would send signed disclosures, credit reports, and
an appraisal would be ordered, together with title insurance and
homeowner’s insurance. Id. at 42. The Bank prepared the documents.
Mr. Shenkman further explained that loan originators received a
percentage of the loans they generated for the Bank, and the higher the
volume, the higher the commission. Id. at 40. He admitted that he had
discretion to omit individuals from the mortgage who might compromise a
loan, and that he would exercise that discretion typically during the
application process. To accomplish that end, he would prepare an
application in the name of the individual who wished to secure the loan and
it would not be a joint application. Id. at 204-05, 61-62. After he reviewed
the documents involved in the instant transaction, Mr. Shenkman concluded:
“It appears as though we only wanted to use Leslie as the borrower” and
that she was offering her interest in the property to secure the mortgage.
Id. at 208-09. He found no indication in the paperwork that the Bank did
not understand the nature of the transaction. Id. at 104. He also pointed
out that had the Bank and Mr. Altieri intended that he be obligated under the
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mortgage, there was no reason why Mr. Altieri could not have taken title to
the Property and signed the mortgage even if he did not personally qualify.
Mr. Shenkman and the closing officer, William Kays, also debunked the
notion that the HUD-1 form was any type of agreement demonstrating an
intent to be bound by the mortgage obligation. Mr. Shenkman described the
form as “a document, signed at closing, which outlines the fees, loan
amount, and sales price of the transaction.” Id. at 56. A title company
would prepare that document, although Mr. Shenkman would receive a copy
of it prior to closing. Mr. Kays acknowledged that it was not uncommon to
have individuals listed on the HUD-1 form who were not on the mortgage,
and that a party’s identification as a “Borrower” on the form did not establish
anything about the party’s intent to be on a mortgage. Deposition of William
Kays, 11/1/13, at 20. Rather, it could simply indicate that an individual had
a role in the transaction such as an ownership interest. Id. at 71.
Moreover, he stated that it was common to see this scenario when
unmarried individuals were on a deed but not on the mortgage. He
observed that the HUD-1 form should match up with the Agreement of Sale,
not the mortgage. Id. at 17.
Furthermore, the mortgage was solely in the name of borrower Leslie
M. Finkel, designated as a single person, and secured “the performance of
Borrower’s covenants and agreements under this Security Instrument and
the Note.” Mortgage, 3/12/04, at 3. It stated, “For this purpose, Borrower
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does hereby mortgage, grant and convey to Lender the following described
property located in the County of North Hampton . . . See Deed.” Id.
(emphasis added). It was apparent from the face of the deed that Ms.
Finkel was not the sole grantee, but that the Property was being conveyed to
Alexander Bryan Altieri and Leslie M. Finkel. Thus, the documents clearly
revealed that two persons were purchasing the property, only one of whom
was obligated under the mortgage.
In addition, Appellants maintain that, as tenants in common, the lien
attached solely to Ms. Finkel’s interest in the Property, and that their
subsequent marriage did not alter the nature of their interests in the
Property. The proceeds of the loan were used by Ms. Finkel to purchase her
one-half interest in the Property. Deposition of Leslie Finkel, 7/15/13, at 17.
Mr. Altieri paid $300,000 in cash to purchase his one-half interest in the
Property. Thus, the record fails to support imposition of an equitable lien
based on the alternative theory that Mr. Altieri was unjustly enriched by the
situation. See R.M. Shoemaker & Co., supra.
At the very least, there were disputed issues of fact regarding the
existence of an agreement evidencing the requisite intent of all of the parties
herein to have the entire Property secure payment of the obligation.
Certainly, the Bank did not produce an agreement to that effect, or in lieu of
same, clear and unambiguous admissions of such an agreement. There was
proof adduced in discovery that the manner in which the mortgage was
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structured was consistent with the Bank’s routine practices at the time. If
credited, such evidence would refute any claim that the parties intended that
Mr. Altieri’s interest in the Property secure Ms. Finkel’s obligation. Moreover,
such evidence could support a finding that the Bank had unclean hands in
this transaction. Missing herein is “clear, precise and indubitable” proof as
to the intention of the parties. Mermon. supra at 799.
Viewing the evidence in the light most favorable to Appellants, as we
must, we find that the trial court improperly dismissed or resolved genuine
issues of material fact in granting partial summary judgment on the
equitable lien claim in favor of the Bank.
Judgment vacated. Case remanded for further proceedings consistent
with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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